Working Together for Resolution: Mediation in Family Law Cases

In the State of Illinois, all cases involving custody of a minor child must be submitted to mediation. Whether the parties were married or not, if the Court is determining issues of where a child resides or who makes decisions for the child, the parties generally must try to reach an agreement through mediation before a trial is held. This article answers some basic questions about mediation in central Illinois. The rules relating to mediation vary throughout Illinois, so it is important have an attorney review the local court rules for your case. The information provided is general information and is not to be considered legal advice.

What is mediation? Mediation is the process where the parties, i.e. the Mother and Father, meet with a neutral third party (the “Mediator”) to try and work out an agreement regarding the children. Mediation can take place in one meeting, or session, or over several meetings/sessions. The mediation may cover issues of custody, visitation, child support, and other issues relating to the children. The basic concept behind mediation is that the Mother and Father of a child should try and work out an agreement before spending time, money and other resources on litigating a case. It is important to note that the parties are not required to reach an agreement, but should make a good faith effort to do so.

Who is the mediator? A mediator is a neutral third party who has no other involvement with the case or the parties. The mediator may be a lawyer, judge, or some other trained professional.

Who attends the mediation? The parties always attend the mediation. The Mediator may request that the child attend the mediation too, depending on the age of the child or the issues presented for mediation. Sometimes each party’s attorney may attend the mediation too, but that depends on the circumstances of each case, the mediator, and the local rules of each court.

What are the benefits of mediation? Mediation is probably the most cost-effective way to resolve a child custody case. If the parties are able to reach an agreement on even some of the issues, the costs of litigating the case (i.e., taking the case to Court) are significantly decreased. Another important benefit is that the parties are empowered to determine the outcome of their case, rather than leaving it in the hands of a Judge. Finally, mediation may allow the parties to avoid an ugly custody case and potential damage to the parties’ relationship.

What are the drawbacks of mediation? Mediation may not be appropriate for all cases. In order for mediation to be effective, both of the parties must have the ability to communicate their needs and concerns and negotiate freely. In some cases, one of the parties may not be able to represent his or her interests fully. For example, if there is a long history of domestic violence between the parties, the victim in the relationship may feel unduly pressured to say “Yes” to the abuser due to fear and intimidation. If mediation is not appropriate for a case, a party may ask the Court to excuse the case from the mediation requirement.

How much does mediation cost? Who pays for it? The cost for mediation varies from mediator to mediator. Some mediators charge an hourly fee and some mediators charge a flat fee. Generally, the parties each pay half of the mediation fee. If, however, one person makes significantly more than the other, the Court may order that one person pay more of the mediation fee. If the parties to the case are low income, the Court may order the mediator to provide services at a discounted rate. Finally, counties in the Second Judicial Circuit offer “Judicial Mediation” to low income parties. Judicial Mediators are judges who serve in the role as a mediator at no cost to the parties.

If you are a parent in a custody case, it is important that you consult with an attorney prior to mediation to discuss the value of mediation in your particular case, your rights as a parent, and most importantly, the needs of your child. At Holtzhouser, Shaner & Cha, Ltd., we can prepare you for mediation, identify your goals, and help you form a parenting plan that will work for your unique family. Finally, if mediation is unsuccessful or inappropriate for your case, we will work with you to present your strongest case to the Court.

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